Appeal No. PN 2 23

IN THE FLORIDA SUPREME COURT OF APPEALS

Jeffrey C. Hurt

Jacqueline M HurtSC 3

Appellant

V.

U S Bank National Association as Trustee on Behalf of the Holders of the Home

Equity Asset Trust 2005-2008

Appellee

APPEAL IN CAUSE NO.

IN THE FLORIDA SUPREME COURT, FLORIDA

APPELLANTS' OPENING BRIEF

Jeffrey C. Hurt

437 Ebbtide Drive

North Palm Beach, FI 33408

Office 561-632-2370

cciam1@yahoo.com

TABLEOFCONTENTS

Table of Contents . . . . . . . . . 2

Table of Citations . . . . . . . . .3-8

Table of Cases . . . . . . . . . .3-8

Table of Statutes . . . . . . . . .9

Statement of the Case and Statement of Facts . . . .9-19

Standard on Appeal . . . . . . . . .20

Arguments . . . . . . . . . . .21

Issue 1:

The Appellee presented evidence

that it was not entitled to enforce

the promissory note in question. . . . . . .21-22

Issue 2:

MERS did not pass an enforceable

interest in the promissory note to

the Appellee. . . . . . . . . .22 -25

Summary of the Arguments. . . . . . . . 25-26

Conclusion . . . . . . . . . .27

Certificate of Service . . . . . . . . . 28

Certificate ofFont Compliance . . . . . . .28

2

TABLE OF CITATIONS

TABLE OF CASES

DeClaire v. Yohanan

453 So. 2d 375 (Fla. 1984) . . . . . .

Martinez v. Scanlon

582 So.2d 1167, 1170-71

Wahl v. Round Valley Bank

38 Ariz. 411, 300 P.955 (1931)

Tube City Mining & Milling Co. v. Otterson

16 Ariz. 305, 146 P. 203 (1914)

Milliken v. Meyer

311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940)

Hobbs v. U.S. Office of Personnel Management

485 F. Supp. 456 (M.D. Fla. 1980)

Ramagli Realty v. Craver

121 So. 2d. 648 (Fla. 1960)

Village of Willowbrook

37 Ill. App.3d 393 (1962)

Your Construction Center, Inc. v. Gross

316 So. 2d 596 (Fla. 4th DCA 1975)

Kumar Corp. v Nopal Lines, Ltd, et al

462 So. 2d 1178, (Fla. 3d DCA 1985)

3

Corcoran v. Brody

347 So. 2d 689 (Fla. 4th DCA 1977)

Fladell v. Palm Beach County Canvassing Board

772 So.2d 1240 (Fla. 2000)

Greenwald v. Triple D Properties, Inc.

424 So. 2d 185, 187 (Fla. 4th DCA 1983)

Costa Bella Development Corp. v. Costa Development Corp.

441 So. 2d 1114 (Fla. 3rd DCA 1983)

Ginsberg v. Lennar Fla. Holdings, Inc.

645 So.2d 490, 494 (Fla. 3'd DCA 1994)

Development Group, Inc.

50 B.R. 588 (Bankr.S.D.Fla. 1985)

Downing v. First National Bank of Lake City,

81 So.2d 486 (Fla. 1955)

37 Fla. Jur. Mortgages and Deeds of Trust '240

Martinez v. Scanlon

582 So.2d 1167, 1170-71 (Fla. 1991

Major League Baseball v.Morsani

790 So. 2d 1071 (Fla. 2001)

4

Rollins v. Alvarez

792 So. 2d 695 (Fla. 5th DCA 2001)

Volusia County v. Aberdeen at Ormond Beach, L.P.

760 So. 2d 126 (Fla. 2000)

Progressive Exp. Ins. Co. v. McGrath Cmty. Chiropractic

913 So. 2d 1281, 1286 (Fla. 2d DCA 2005)

McLean v. JPMorgan Chase Bank, N.A.

No. 4D10-3429 (Fla. 4th DCA Feb. 8, 2012)

Sobel v. Mutual Dev. Inc.,

313 So. 2d 77 (Fla. 1 DCA, 1975)

Pepe v. Shepherd, 422 So. 2d 910 (Fla. 3 DCA 1982)

Margiewicz v. Terco Prop.

441 So. 2d 1124 (Fla. 3 DCA 1983)

Brown v. Snell

6 Fla. 741 (1856)

Tayton v. American Nat'l Bank

57 So. 678 (Fla. 1912)

5

Scott v. Taylor

58 So. 30 (Fla. 1912)

Young v. Victory

150 So. 624 (Fla. 1933)

Thomas v. Hartman

553 So. 2d 1256 (Fla. 5 DCA 1989)

Grier v. M.H.C. Realty Co

274 So. 2d 21 (Fla. 4 DCA 1973)

Mellor v. Goldberg

658 So. 2d 1162 (Fla. 2 DCA 1995)

Century Group Inc. v. Premier Fin. Services East L. P.

724 So. 2d 661 (Fla. 2 DCA 1999)

Evins v. Gainsville Nat'l Bank

85 So. 659 (Fla. 1920)

Case v. Smith

200 So. 917 (Fla. 1941)

Collins v. Briggs

6

123 So. 833 (Fla. 1929)

Miami Mtge. & Guar. Co. v. Drawdy

127 So, 323 (Fla. 1930)

So. Colonial Mtge. Co. v. Medeiros

347 So. 2d 736 (Fla. 4 DCA 1977)

Vance v. Fields

172 So. 2d 613 (Fla. 1 DCA 1965)

Sobel v. Mutual Dev. Inc.

313 So. 2d 77 (Fla. 1 DCA 1975)

Amacher v. Keel

358 So. 2d 889 (Fla. 2 DCA 1975)

7

TABLE OF STATUTES

§ 45.031, Fla. Stat. (2012)

§ 673.1031(1)(a), Fla. Stat.(2012)

§ 673.1031(1)(c), Fla. Stat.(2012)

§ 673.1031(1)(e), Fla. Stat.(2012)

§ 673.1041(1), Fla. Stat.(2012).

§ 673.1041(2), Fla. Stat.(2012)

§ 673.1041(5), Fla. Stat. (2012).

§ 673.1051(1), Fla. Stat.(2012)

§ 673.1051(3), Fla. Stat.(2012)

§ 673.1091(2), Fla. Stat.(2012)

§ 673.1101(1), Fla. Stat.(2012)

§ 673.2011(2), Fla. Stat.(2012)

§ 673.2014(1), Fla. Stat.(2012)

7§ 673.2031(1), Fla. Stat.(2012)

§ 673.2031(3), Fla. Stat.(2012)

§ 673.2041(1), Fla. Stat.(2012)

§ 673.3011, Fla. Stat.(2012)

§ 673.4121, Fla. Stat.(2012)

§ 673.4151, Fla. Stat.(2012)

§ 673, et. seq., , Fla. Stat.(2012)

8

STATEMENT OF THE CASE AND FACTS

This appeal is taken from the Circuit Court's decision to render SummaryFinal

Judgment against the Appellant. The Appellate Court of Florida has jurisdiction to

consider the issues raised in this appeal under authority of the Florida Rules of

Appellate Procedure, Rule 9.130 et seq. The nature of the case below was

Appellee's Complaint to foreclose the residential real property owned and occupied

by the Appellant, Jeffrey C. Hurt & Jacqueline M. Hurt. Appellant's First

Amended Answer challenged Appellee's standing in affirmative defenses and an

incorporated Summary Final Judgment against the Appellant On July 20*, 2012, a

hearing on the Appellee's Motion for Summary Final Judgment was held. The

Appellee offered in evidence the promissory note, the mortgage instrument and an

assignment of mortgage. Appellant's Response in Opposition to Appellee's

Motion for Summary Final Judgment which stipulated that this evidence was not in

dispute. Appellant contended that the dispute was as to what that evidence actually

proved - that being that Appellant was not entitled to enforce the promissory note

against Appellee. On July 20*, 2012, Circuit Judge granted Summary Final

Judgment of Foreclosure in Appellee's favor. Appellee made the following three

claims in it's Complaint: 1) "On or about June 8*, 2005, a promissory note was

executed and delivered in favor of Homefield Financial Inc., or Appellee's

assignor, in the original principal amount of $307,100.00." 2) "The Appellee was

9

assigned the mortgage in good standing and is known as the present owner and

constructive holder of the promissory note and Mortgage." and, 3) "The above-

described Note and Mortgage were assigned to Plaintiff. See attached as Exhibit

"A". Plantiff instituted a foreclosure action in the Palm Beach County Court date

stamped, November 1", 2007. See attached as Exhibit "B". On June 8* 2008 a

copy of the original note was filed and attached was an Allonge. See attached as

exhibit "C". The Allonge was neither dated nor notarized, attached 9 months post

filing. Pursuant to Rules 1.540(b)(3)(4), 1.210(a) and 1.140(b)(7) of the Florida

Rules of Civil Procedure because nothing has been established on the record that

the alleged assignment of mortgage and Allonge ever transferred interest in the

loan to Plaintiff, both are fraudulent and defective. And it is clear from the

promissory note and mortgage submitted as evidence, that a person other than

Plaintiff is the true owner of the claim sued upon and that Plaintiff is not the real

party in interest and is not shown to be authorized to maintain this foreclosure

action. The mortgage and the note show that Homefield Financial, Inc. is the

lender not Plaintiff. McLean v. JPMorgan Chase Bank, N.A., No. 4D10-3429 (Fla.

4th DCA Feb. 8, 2012) "While it is true that standing to foreclose can be

demonstrated by the filing of the original note with a special endorsement in favor

of the plaintiff, this does not alter the rule that a party's standing is determined at

the time the lawsuit was filed. See Progressive Exp. Ins. Co. v. McGrath Cmty.

10

Chiropractic, 913 So. 2d 1281, 1286 (Fla. 2d DCA 2005). Stated another way, "the

plaintiff's lack of standing at the inception of the case is not a defect that may be

cured by the acquisition of standing after the case is filed." Id. at 1285. Thus, a

party is not permitted to establish the right to maintain an action retroactively by

acquiring standing to file a lawsuit after the fact. Id. at 1286. On March 10*, 2011,

the Appellee filed the attachment of mortgage, the date of the assignment is June

19*, 2009. See attached as Exhibit "D". On May 31", 2011, Appellant filed Motion

to Dismiss "Lack of Debt Validation" which substantially denied the foreclosure

allegations for lack of standing . See attached as Exhibit "E". On July 20*, 2011,

the motion to dismiss was denied by Judge Lewis. On April 25*, 2012, Appellee

filed a Motion for Summary Final Judgment. See attached as Exhibit "F". In

support of the Motion for Summary Final Judgment, the Appellee relied solely

upon the promissory note, the Mortgage instrument and the assignment of

mortgage to support its' claim that: In this document the Appellant stipulated that

Appellee's evidence was authentic, uncontested and that there were no genuine

issues of material fact. The Sale date was set on January 14*, 2013. On January

11*, 2013, Defendant filed an Objection to Foreclosure Sale, Motion to Vacate

Certificate of Sale & Final Judgment, for Lack of Subject Matter Jurisdiction,

Fraud upon the Court Evidentiary Hearing Request was denied as untimely. Sale of

property to U.S. Bank National Association occurred January 14*, 2013 at 10:00

11

A.M.. To summarize, the plaintiff must prove that it had standing to foreclose

when the complaint was filed. See Country Place Cmty. Ass'n v. J.P. Morgan

Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010) "The Court

lacked subject matter jurisdiction to proceed. Subject matter jurisdiction has never

been established on the record. The jurisdictional question can be raised at any

time and can never be time-barred. DeClaire v. Yohanan, 453 So. 2d 375 (Fla.

1984). In order for the Court to have subject matter jurisdiction there must exist (1)

a justiciable controversy (2) between adverse parties. Martinez v. Scanlon, 582

So.2d 1167, 1170-71 (Fla. 1991). Here the record does not show the Plaintiff and

Defendants are adverse parties or have a justiciable controversy between them.

Void judgments are those rendered by a court which lacked jurisdiction, either of

the subject matter or the parties. See: Wahl v. Round Valley Bank, 38 Ariz. 411,

300 P.955 (1931), Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146

P. 203 (1914), Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278

(1940). The Court did not have subject matter jurisdiction as such the final

judgment is void. A void judgment is one which from the beginning was complete

nullity and without any legal effect, Hobbs v. U.S. Office of Personnel

Management, 485 F.Supp. 456 (M.D. Fla. 1980). A void judgment is a nullity...

and is subject to collateral attack and may be stricken at any time. The passage of

time cannot make valid that which has always been void. Ramagli Realty v.

12

Craver, 121 So. 2d. 648 (Fla 1960) Subject Matter Jurisdiction fails in case of

Fraud upon the court, In re Village of Willowbrook, 37 Ill. App.3d 393 (1962).

Here the plaintiff procured an assignment signed by a Robo-Signer parading as an

employee of one company while working for a servicer of the Plaintiff, as well as

an Allonge to the note fabricated to show the interest transferred to the Trust while

both of these documents attest to the impossibility of that fact. Pursuant to Rules

1.540(b)(3)(4), 1.210(a) and 1.140(b)(7) of the Florida Rules of Civil Procedure

because nothing has been established on the record that the alleged assignment of

mortgage and Allonge ever transferred interest in the loan to Plaintiff, both are

fraudulent and defective. And it is clear from the promissory note and mortgage

submitted as evidence, that a person other than Plaintiff is the true owner of the

claim sued upon and that Plaintiff is not the real party in interest and is not shown

to be authorized to maintain this foreclosure action. The mortgage and the note

show that Homefield Financial, Inc. is the lender not Plaintiff. Florida law defines

those who are entitled to enforce a negotiable instrument as either a "holder" of the

instrument, a non-holder in possession who has the rights of a holder or a person

not in possession who is entitled to enforce it as a lost instrument. (§ 673.3011,

Fla. Stat. (2009)) Florida law goes so far as to permit a person to be entitled to

enforce an instrument even though that person is not the owner of the instrument or

is in wrongful possession of the instrument. However, the subject promissory note

13

is more restrictive in its' in a mortgage loan, there is only one negotiable

instrument, and that is the promissory note. Neither the mortgage instrument nor

the assignment of mortgage are "negotiable instruments" as the term "instrument"

as used in § 673, Fla. Stat. (2009), et. seq., only means a "negotiable instrument".

(§ 673.1041(2), FLA. STAT. (2009)) characterization of who may enforce it

because the subject promissory note and the subject mortgage instrument together

were designed to have been sold in fractional interests on the secondary market.

The subject mortgage instrument provides "The Note or a partial interest in the

Note (together with this Security Instrument)can be sold one or more times without

prior notice to Borrower." (R. I/77, para. Having multiple parties attempting to

enforce a single promissory note could destroy the entire secondary market system

in mortgages. In order to prevent that from happening, the subject promissory

note does not make a mere possessor of it a "holder", rather, one becomes a

"holder" of the subject promissory note only upon "transfer" of the promissory

note along with the right to enforce it. The subject promissory note provides "The

Lender or anyone who takes this Note by transfer and who is entitled to receive

payments under this Note is called the "Note Holder". 1. This is consistent with

Florida Statutes § 673.2031(1) which provides that an instrument is transferred

when it is delivered by a person other than its issuer for the purpose of giving to

the person receiving delivery the right to enforce the instrument. 2. Florida

14

Statutes section 673.2041 (1)provides that the term "endorsement" means a

signature, other than that of a signer as maker, drawer, or acceptor, that alone or

accompanied by other words is made on an instrument for the purpose of

negotiating the instrument, restricting payment of the instrument, or incurring

endorser's liability on the instrument. Appellant is the "maker" of the promissory

note pursuant to Florida Statutes section 673.1031(1)(e) which provides that

"Maker" means a person who signs or is identified in a note as a person

undertaking to pay." The terms "drawer" and "acceptor' do not apply in this case

as those terms only apply to a "draft" pursuant to Florida Statutes section

673.1031(1)(a) & (c). Florida Statutes section 673.1041(5) provides that "An

instrument is a "note" if it is a promise and is a "draft" if it is an order." 3. For the

purpose of determining whether a signature is made on an instrument, a paper

affixed to the instrument is a part of the instrument. (§673.2041(1), Fla. Stat.

(2009)) "An Allonge is a piece of paper annexed to a negotiable instrument or

promissory note, on which to write endorsements for which there is no room on the

instrument itself. Such must be so firmly affixed thereto as to become a part

thereof." BLACK'S LAW DICTIONARY (6* ed.1990). Florida's Uniform

Commercial Code does not specifically mention an Allonge, but notes that "[f]or

the purpose of determining whether a signature is made on an instrument, a paper

affixed to the instrument is part of the instrument."§ 673.2041(1), Fla. Stat.

15

(1995)). Booker v. Sarasota, Inc., 707 So.2d 886 (Fla.App. 1 Dist., 1998) In

Florida, the prosecution of a foreclosure action is by the owner and holder of the

mortgage and the note. Appellee is not entitled to maintain this action in which it

seeks to foreclose on a note which Appellee does not own. Your Construction

Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975) Appellee, alleges that it

owns and holds the subject note and mortgage. There is no evidence or testimony

supporting this. In fact, all evidence and testimony specifically and conclusively

demonstrates the opposite. Rule 1.210(a) of the Florida Rules of Civil Procedure

provides, in pertinent part: Every action may be prosecuted in the name of the real

party in interest, but a personal representative, administrator, guardian, trustee of

an express trust, a party with whom or in whose name a contract has been made for

the benefit of another, or a party expressly authorized by statute may sue in that

person's own name without joining the party for whose benefit the action is

brought... Plaintiff in this action meets none of these criteria. Standing requires that

the party prosecuting the action have a sufficient stake in the outcome and that the

party bringing the claim be recognized in the law as being a real party in interest

entitled to bring the claim. This entitlement to prosecute a claim in Florida courts

rests exclusively in those persons granted by substantive law, the power to enforce

the claim. Kumar Corp. v Nopal Lines, Ltd, et al, 462 So. 2d 1178, (Fla. 3d DCA

1985) No Florida case holds that a separate entity can maintain suit on a note

16

payable to another entity unless the requirements of Rule 1.210(a) of the Florida

Rules of Civil Procedure and applicable Florida law are met. Corcoran v. Brody,

347 So. 2d 689 (Fla. 4th DCA 1977)

Fla.R.Civ.P. Rule 1.130(a) requires a Plaintiff to attach copies of all bonds, notes,

bills of exchange, contracts, accounts, or documents upon which action may be

brought to its complaint. Plaintiff has failed to attach any document that supports

its pleadings. As a result, although Plaintiff claims to be the owner of the

promissory note, the promissory note submitted as evidence at the commencement

of the action conflicts with this allegation, it shows that Homefield Financial is the

owner. The Allonge fails to transfer interest to plaintiff. It did not surface until

eight months after filing the complaint, it is not dated, not notarized and does not

show the required chain of endorsement form originator to seller to depositor to

trust. These requirements are set by the controlling Pooling and Servicing

agreement of the Plaintiff's Trust. See Pooling and Servicing Agreement article II.

The assignment was executed by robo-signer Bill Koch, representing himself as

MERS nominee when in fact he was an employee of the servicer. Execution date is

after the date of the filing of the complaint and after the closing date of the Trust,

and also after the closing of the lender's business. Such an assignment is

fraudulent, invalid and violates the PSA. In addition this loan was in default at the

date of the assignment, it is a nonperforming mortgage that wouldn't be accepted

17

or be part of the loan pools owned by the trust; such loans are prohibited by the

PSA. As such the assignment fails to transfer any interest in the note or mortgage

to plaintiff.

When exhibits are inconsistent with Plaintiff's allegations of material fact as to

who the real party in interest is, such allegations cancel each other out. Fladell v.

Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v.

Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella

Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA

1983). As such, exhibits attached to complaint or other pleadings must agree with

allegations of the complaint, and where the two do not agree, the exhibits control.

See also, Geico Gen. Ins.Co. v. Graci, 849 So.2d 1196 (Fla. 4* DCA 2003) and

Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 494 (Fla. 3'd DCA 1994)

(where exhibits contradict complaint allegations, plain meanings of exhibits

control). Harry Pepper & Associates at 247. Plaintiff is not the real party in interest

and is not shown to be authorized to bring this action. In re: Shelter Development

Group, Inc., 50 B.R. 588 (Bankr.S.D.Fla. 1985) [It is axiomatic that a suit cannot

be prosecuted to foreclose a mortgage which secures the payment of a promissory

note, unless the Plaintiff actually holds the original note, citing Downing v. First

National Bank of Lake City, 81 So.2d 486 (Fla. 1955)]; Your Construction Center,

Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975), See also 37 Fla. Jur. Mortgages

18

and Deeds of Trust '240 (One who does not have the ownership, possession, or the

right to possession of the mortgage and the obligation secured by it, may not

foreclose the mortgage).

Furthermore, the affidavit of support for the final judgment is defective on its face,

cannot determine the identity of the affiant. Notary did not comply with Fla. Stat,

117.5, as the the jurat, it does not show how the notary ascertained the identity of

the affiant. Plaintiff's pleadings fail to contain sufficient facts to establish who the

Plaintiff is and its relationship to Defendant and to the claim for foreclosure of the

subject promissory note and mortgage. The record also fails to allege facts

sufficient to determine the standing of Plaintiff. In order for the Court to have

subject matter jurisdiction there must exist (1) a justiciable controversy (2)

between adverse parties. Martinez v. Scanlon, 582 So.2d 1167, 1170-71 (Fla.

1991). Here the record does not show the Plaintiff and Defendants are adverse

parties or have a justiciable controversy between them.

19

STANDARD ON APPEAL

The standard of review for summary judgment is de novo. Major League Baseball

v.Morsani, 790 So. 2d 1071 (Fla. 2001); Rollins v. Alvarez, 792 So. 2d 695 (Fla.

5th DCA 2001); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d

126 (Fla. 2000). In reviewing a summary judgment, the Court must determine

whether there is any "genuine issue as to any material fact" and whether"the

moving party is entitled to judgment as a matter of law." Fla. R. Civ. P.1.510(c).

Issues of fact are "genuine" only if a reasonable jury, considering the evidence

presented, could find for the non-moving party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986). Generally, "[t]he party moving for summary judgment

has the burden to prove conclusively the nonexistence of any genuine issue of

material fact." City of Cocoa v. Leffler, 762 So. 2d 1052,1055 (Fla. 5tbDCA

2000). The evidence contained in the record, including supporting affidavits, must

be considered in the light most favorable to the non-moving party, and if the

slightest doubt exists, summary judgment must be reversed. Krol v. City of

Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001).

20

ARGUMENTS FIRST ARGUMENT THE APPELLEE PRESENTED

EVIDENCE THAT IT WAS NOT ENTITLED TO ENFORCE THE

PROMISSORY NOTE IN QUESTION

Every mortgage loan is composed of two documents - the note instrument and the

mortgage instrument. No matter how much the mortgage instrument is acclaimed

as the basis of the agreement, the note instrument is the essence of the debt. Sobel

v. Mutual Dev. Inc., 313 So. 2d 77 (Fla. 1 DCA, 1975); Pepe v. Shepherd, 422 So.

2d 910 (Fla. 3 DCA 1982); Margiewicz v. Terco Prop., 441 So. 2d 1124 (Fla. 3

DCA 1983). The promissory note is evidence of the primary mortgage obligation.

The mortgage is only a mere incident to the note. Brown v. Snell, 6 Fla. 741

(1856); Tayton v. American Nat'l Bank, 57 So. 678 (Fla. 1912); Scott v. Taylor, 58

So. 30 (Fla. 1912); Young v. Victory, 150 So. 624 (Fla. 1933); Thomas v.

Hartman, 553 So. 2d 1256 (Fla. 5 DCA 1989). The mortgage instrument is only

the security for the indebtedness. Grier v. M.H.C. Realty Co, 274 So. 2d 21 (Fla. 4

DCA 1973); Mellor v. Goldberg, 658 So. 2d 1162 (Fla. 2 DCA 1995); Century

Group Inc. v. Premier Fin. Services East L. P., 724 So. 2d 661 (Fla. 2 DCA 1999)

From the evidence admitted in Court, it is impossible to know whether Appellee

was ever a "holder" of the promissory note - as that term is defined by the subject

promissory note. Additionally, since this promissory note was payable to

Homefield Financial Inc., before it could be enforced against the Appellant it had

21

to be a conforming loan not in arrears. There was no evidence presented of this ,

in court although the opposite was proven. Therefore, the evidence presented

proved that Appellee was not entitled to enforce the promissory note against

Appellant.

SECOND ARGUMENT MERS DID NOT PASS AN ENFORCEABLE

INTEREST IN THE PROMISSORY NOTE TO APPELLEE

The note is the instrument of concern in all assignment situations. There is an old

maxim "the mortgage follows the note". Evins v. Gainsville Nat'l Bank, 85 So.

659 (Fla. 1920); Case v. Smith, 200 So. 917 (Fla. 1941) The note is evidence of

the primary mortgage obligations or the debt. The assignment of the note carries

with it the mortgage and its rights, even though the mortgage instrument has not

been assigned either orally or in writing. Collins v. Briggs, 123 So. 833 (Fla.

1929); Miami Mtge. & Guar. Co. v. Drawdy, 127 So. 323 (Fla. 1930); So. Colonial

Mtge. Co. v. Medeiros, 347 So. 2d 736 (Fla. 4 DCA 1977) 23The mortgage, as

evidenced by the mortgage instrument, is only a mere incident to the debt.

Therefore, the mortgage instrument is of lesser significance. Because the

assignment of the note is an imperative act as to the transferring of the mortgagee's

right, the assignment of the mortgage instrument without the note is an ineffective

22

assignment. Vance v. Fields, 172 So. 2d 613 (Fla. 1 DCA 1965); Sobel v. Mutual

Dev. Inc., 313 So. 2d 77 (Fla. 1 DCA 1975); Amacher v. Keel, 358 So. 2d 889

(Fla. 2 DCA 1975) In the instant case, the assignment of mortgage claims that it

assigns the beneficial interest in both the note instrument and the mortgage

instrument to Appellee. However, the note instrument was bifurcated from the

mortgage instrument and MERS did not have an interest in the Note that it could

assign. MERS act of assigning the mortgage instrument was invalid as it held no

beneficial interest in the mortgage instrument for two reasons: 1) a security

instrument, apart from the promissory note giving rise to the debt has no value

because there is no debt by which it secures payment; and 2) MERS had no

beneficial interest in the mortgage instrument that it could assign. Additionally, the

subject mortgage instrument states that it can only be transferred with the sale of

the note - and not the other way around where the sale of the mortgage instrument

would include the note. The subject mortgage instrument provides "The Note or a

partial interest in the Note (together with this Security Instrument) can be sold one

or more times without prior notice to Borrower." (R. I/77, para. 20) In this case,

the only relevant transfer that could occur is a transfer of the promissory note,

which would include a transfer of the 25mortgage instrument if ownership of that

instrument were not bifurcated from the ownership of the promissory note. So an

assignment of the mortgage instrument from MERS to Appellee would not transfer

23

the promissory note to Appellee. Appellant's Opposition to the Appellee's Motion

for Summary Final Judgment included an affidavit of the contents of the MERS

website. The Opposition stated in relevant part: MERS has nothing to transfer by

an assignment. MERS own website listed "MERS Recommended Foreclosure

Procedures for FLORIDA". In this document MERS states that it is not the

beneficial owner of the promissory note. This document states: MERS stands in

the same shoes as the servicer to the extent that it is not the beneficial owner of the

promissory note. An investor, typically a secondary market investor, will be the

ultimate owner of the note. In the consolidated cases of In re Foreclosure Cases,

521 F. Supp. 2D 650, 653 (S.D. Oh. 2007), a standing challenge was made and the

Court found that there was no evidence of record that New Century ever assigned

to MERS the www.mersinc.orWfiledownload.aspx?id=176&table=ProductFile26

promissory note or otherwise gave MERS the authority to assign the note.

Beginning with this case, courts around the country started to recognize that MERS

had no ownership in the notes and could not transfer an interest in a mortgage upon

which foreclosure could be based. In LaSalle Bank NA v. Lamy, 824 N.Y.S.2d

769 (N.Y. Supp. 2006), the Court denied a foreclosure action by an assignee of

MERS on the grounds that MERS itself had no ownership interest in the

underlying note and mortgage. In the case of In re Mitchell, Case No. BK-S-07-

16226-LBR (Bankr.Nev., 2009), the Court stated "In order to foreclose, MERS

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must establish there has been a sufficient transfer of both the note and deed of

trust, or that it has authority under state law to act for the note's holder." (At page

9) The Court found that MERS has no ownership interest in the promissory note.

The Court found that though MERS attempts to make it appear as though it is a

beneficiary of the mortgage, it in fact is not a beneficiary. The Court stated "But it

is obvious from the MERS' "Terms and Conditions" that MERS is not a

beneficiary as it has no rights whatsoever to any payments, to any servicing rights,

or to any of the properties secured by the loans.

SUMMARY OF THE ARGUMENTS

When exhibits are inconsistent with Plaintiff's allegations of material fact as to

who the real party in interest is, such allegations cancel each other out. In order for

the Court to have subject matter jurisdiction there must exist a justifiable

controversy between adverse parties. Ownership of the promissory note and the

mortgage instrument was non negotiable as a non performing promissory note was

not a bearer instrument. Rather, it was made payable to the lender who is a

specifically identified as - U.S. BANK NATIONAL ASSOCIATION, AS

TRUSTEE ON BEHALF OF THE HOLDERS OF THE HOME EQUITY ASSET

TRUST 2005-2008 HOME EQUITY PASS-THROUGH CERTICACATES,

SERIEST 2005-8 years after the filing of this suit - and the mortgage instrument

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named MERS as the mortgagee, for Homefield Financial Inc. Neither the

promissory note nor the mortgage instrument granted MERS an interest in the

promissory note, instead, Homefield Financial Inc. retained ownership in the

promissory note being a non-performing loan. The right to foreclose is dependent

upon there being an enforceable promissory note. An assignment of mortgage

from MERS to Appellee granted Appellee all of the interests that MERS had in the

promissory note and the mortgage instrument. By the assignment of mortgage,

MERS could not convey a greater interest to Appellee than that which it already

held. Since MERS had no enforceable interest in the promissory note, it conveyed

no enforceable interest in the promissory note to the Appellee. Even if MERS was

an agent of Homefield Financial Inc. with authority to enforce the promissory

note, no evidence of such authority was presented to the Circuit Court. Without

an interest in the promissory note, or without evidence of authority to enforce the

promissory note against Appellant, Appellee had no standing to foreclose and

summary judgment was improper

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CONCLUSION

WHEREFORE, the Circuit Court's judgment should be set aside and the

matter remanded.

Respectfully Submitted,

JEFFREY C. HURT, pro se437 Ebbtide DriveNorth Palm Beach, F1 33408(561) 632-2370 Phonejeffhurt22@yahoo.com email

By:

Defendant

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished via U.S. Mail to the following Attorneys for Plaintiff

Weitz & Schwartz, P.A., 900 S.E. 3'd Avenue, Ste. 204, Ft. Lauderdale, FI 33316

Telephone (954) 468-0016

Anthony Ryan Smith P.A., 2311 Highland Avenue, South Birmingham, Al 35205

Telephone (205) 930-5100

Kathryn I Kasper P.A., 1115 E Gonzalez St., Pensacola, El 32503

Telephone (950) 462-1500 (850) 462-1599

Matthew R Feluren P.A., 200 East Broward Blvd. Ste. 900, Ft Lauderdale, FI 33301Sirote & Permutt, P.C.

Clerk Palm Beach PBC Courthouse 205 N. Dixie Hwy, West Palm Beach, FI 33401Sharon R. Bock, Clerk

Telephone (561) 355-7845 (561) 355-4643

Hon. Diana Lewis 205 N. Dixie Hwy, West Palm Beach, FL 33401

Palm Beach County Courthouse

5th District Florida Court of Appeals 1525 Palm Beach Lakes Blvd. West Palm

Beach, FI 33401

JEFFREY C. HURT, pro se437 Ebbtide DriveNorth Palm Beach, F1 33408(561) 632-2370 Phoneeffhurt22@yahoo com email